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To facilitate legitimate competitor collaboration, federal antitrust agencies have created an expedited review procedure for companies seeking assurances that activities targeting COVID-19 do not run afoul of federal antitrust law. They also issued guidance regarding permissible and impermissible collaborations related to the pandemic.
The U.S. Department of Justice Antitrust Division and the Federal Trade Commission issued a joint statement on March 24, 2020 committing to speed up their reviews of businesses’ contemplated COVID-19 activities to determine whether those activities comply with the antitrust laws. While such review procedures ordinarily may consume several months, the agencies pledged to respond to all COVID-19-related requests, and resolve those addressing public health and safety, within seven calendar days of receiving all information deemed necessary for evaluation. The FTC and DOJ acknowledged that they “will account for exigent circumstances in evaluating efforts to address the spread of COVID-19 and its aftermath.”
In their statement, the agencies also provided important antitrust guidance about collaborations related to COVID-19. They recognized that health care facilities may need to work together in providing resources and services to assist patients, consumers and communities affected by the pandemic and its aftermath and potentially lacking access to personal protective equipment, medical supplies or health care. They also acknowledged that businesses may need to temporarily combine production, distribution or service networks to facilitate production and distribution of COVID-19-related supplies.
The statement specifically listed several types of collaborative activities designed to improve the health and safety response to the pandemic that would likely be consistent with the antitrust laws. Activities that are generally in the clear, according to the statement, include collaborative research and development, sharing of “technical know-how” separate from any pricing data, collaborative efforts devising health care “practice parameters,” health care joint purchasing agreements that are aimed at improving efficiency and reducing costs, and private lobbying of federal agencies to use their emergency authority.
Conversely, the agencies warned against efforts to take advantage of the pandemic, through violations of customer protection statutes or antitrust law, including agreements to raise prices, lower wages or reduce output or quality, in addition to attempted exclusionary conduct by monopolists.
Stevens & Lee’s Antitrust and Unfair Competition Group stands ready to assist you with any requests for expedited antitrust review related to COVID-19 collaborations or other contemplated actions. If you have questions, please contact Joseph E. Wolfson at 215.751.1249 or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
